Summary: The Council did not properly consider whether a developer had breached conditions attached to a planning permission. This is fault, but it did not cause injustice, because the matter was resolved as part of a subsequent planning application. There was no fault in how the Council considered whether there was a nuisance arising from fumes on the development site. The Council’s complaint handling was unnecessarily complicated, but this did not cause injustice. For this reason, we have completed our investigation.

The complaint

1. The complainant, to whom I will refer as Mrs C, says she suffered ill-effects as a result of development on land near her property. She complains the Council did not help her during this period.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I reviewed the Council’s correspondence with Mrs C, and some internal correspondence and notes it provided to me.

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What I found

6. Mrs C lives in an area which was historically used for mining. She says she suffers from a sensitivity to a particular class of chemical called ‘long-chain hydrocarbons’.
7. In 2017, a developer sought outline planning permission from the Council to build nine houses near Mrs C’s home. During the application process, the developer submitted a ‘Phase I Generic Quantitative Risk Assessment’ about land contamination. The assessment concluded there was a high risk of contamination from metals, radon gas, and invasive species, and recommended a ‘Phase II’ risk assessment being completed. The assessment also said a ground gas risk assessment should be completed because of a landfill site approximately 250m away.
8. In January 2018, the Council granted outline permission. It attached several conditions to the permission, including that a full assessment of risks posed by the land contamination should be submitted for approval by the Council before development began (with the exception of the demolition of any existing structures). Another condition required investigation into the position of former mine shafts before development began.
9. Work on the land began in September 2019, and Mrs C says she soon began to suffer the effects of her long-chain hydrocarbon sensitivity. She says she was forced to vacate her home during the day for a period of six weeks while the work was ongoing, and that her GP had advised her to move out.
10. Mrs C contacted the Council on 13 September, which referred the matter to its environmental health team for investigation.
11. An environmental health officer (EHO) contacted Mrs C. The Council’s notes record that he told her “Environmental Protection could take no further action [but] Environmental Protection does deal with contaminated land issues”; and that, because the work was under a planning condition, “then the matter of works carried out is a matter for planning enforcement prior to any contaminated land investigation”.
12. Mrs C submitted evidence from her GP to the Council on 24 September. The GP recorded that Mrs C had described a range of symptoms she was suffering, which she had said was as a result of fumes from the development site.
13. On 27 September, the EHO visited the site. He noted he could not gain access at the time, as the site was locked up and empty, but that it appeared a large quantity of material had been excavated. The officer recorded there was no evidence of hydrocarbons present, and that he assumed Mrs C’s complaint related to fumes from machinery. He also noted there had been no further consultation with environmental health, and that he would refer the matter as a possible planning enforcement issue.
14. The EHO referred to the information from Mrs C’s GP, but noted it was simply a series of symptoms she had described, rather than an objective confirmation from the doctor.
15. The Council’s notes also record the EHO referred the matter to its community protection team to investigate as a possible nuisance. A community protection officer visited the site on 1 and 2 October, meeting with Mrs C in the process, but concluded there was no statutory nuisance.
16. On 17 October, a Council officer suggested Mrs C contact Public Health England (PHE) for support. She did so, but PHE explained it could not investigate her complaint and referred her back to the Council.
17. Mrs C made a complaint to the Council on 20 October. She says she heard nothing further, and then escalated her complaint to stage 2 on 30 November. On 2 December, Mrs C says she received a reply which did not answer her questions.
18. The Council has provided a copy of its stage 1 response, dated 30 October. The Council then responded to Mrs C’s complaint on 20 January 2020.
19. The Council explained that, because the work was subject to a planning condition, it considered it was a planning matter. However, the Council’s environmental health and community protection teams had undertaken three visits to the site, and the officers had followed the correct procedure to determine whether there were nuisance fumes.
20. The Council said the advice for Mrs C to contact PHE was not in pursuit of her complaint, but for general support with any health issues she might be suffering. It also said, for a matter to be considered a statutory nuisance, it must affect the ‘average’ person, and neither officer had witnessed anything. The Council did not accept it needed to make any changes to its processes.
21. The Council’s response also said it could not explain the outcome of its planning investigation.
22. Mrs C referred her complaint to the Ombudsman on 2 March.
23. Since the submission of Mrs C’s complaint, there has been a further outline planning application for the site. As part of the application, a ‘Phase II’ risk assessment was submitted. The risk assessment says the site is “acceptably free from contamination as far as the hazards from Polyaromatic Hydrocarbons are concerned”.
24. The Council refused this planning application, and the Planning Inspectorate refused an appeal against this decision in September 2020.

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Legislative background

Planning enforcement

25. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

Statutory nuisances

26. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
27. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

28. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.

29. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
30. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

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Analysis

31. Mrs C complains development began on the site, despite the fact the developer had not completed a land contamination risk assessment, as required by the planning permission. She also complains the Council did not properly investigate the fumes she said were causing her ill-effects.
32. The Council has provided evidence relating to its planning enforcement investigation. It says it sought information from the developer in October 2019, prompted by the referral made by the EHO after his visit to the site in September.
33. In January 2020, the Council closed the enforcement case. This is because the information provided by the developer showed the excavation work was necessary to comply with one of the conditions attached to the planning permission – that the developer should investigate the site for signs of former mining activity, to ensure its stability, before beginning construction.
34. But the Council has accepted it did not consider the separate condition, requiring a contamination risk assessment, as part of the enforcement investigation. This is fault.
35. The Council says it does not consider this fault to have made a material difference to the outcome of the investigation, because “the works that were undertaken and the manner in which they were implemented were found to be acceptable”. The Council’s position appears, in effect, to be that, because the excavation work was carried out properly, this means there was no reason to be concerned about the failure to carry out the land contamination risk assessment. Therefore, even if the Council had considered this condition, it would not have taken any action over the apparent breach.
36. I struggle to follow this. I cannot see how an assessment of the excavation work could indicate whether there was a risk arising from possible land contamination. They appear to be two entirely separate considerations. So, on the evidence which was available to the Council at the time, it does not appear safe to conclude its failure to consider the land contamination condition made no difference to the outcome of the enforcement investigation.
37. This said, I am still satisfied this does not represent an injustice to Mrs C. This is because, as part of the more recent application, the developer submitted the missing Phase II risk assessment, which determined there was no significant hydrocarbon contamination on the site. So, even if the Council had required the developer to submit this earlier – as it appears it should have done – it is clear it would not have identified any risks from hydrocarbons. It follows, therefore, the Council would not have required the developer to take steps to mitigate such a risk.
38. Separately, Mrs C has raised the fact the Phase I assessment recommended a ground gas risk assessment also be completed. However, the Council did not include this as a condition on the planning permission, and so there is no enforcement issue here to explore.
39. I cannot say whether the Council properly considered imposing a ground gas risk assessment during the application process. But it granted permission for the development in January 2018, which is more than two years before Mrs C’s complaint to the Ombudsman, and so this matter is late. For this reason, I cannot investigate it.
40. Turning to the environmental health aspect of Mrs C’s complaint, I note first the Council appears to have given Mrs C conflicting information about whether this was a matter for its Environmental Protection or Community Protection teams. However, officers from both teams then visited the site.
41. Either way, I am satisfied with the Council’s reasons for not taking action about the alleged fumes. I appreciate Mrs C says she was experiencing ill-effects as a result of a release of hydrocarbons from the work; but, in order to substantiate a nuisance, the Council must gather objective evidence to support it. It is clear neither officer could detect the problem Mrs C was reporting, and so I accept there was no action the Council could take.
42. And crucially, as I have already noted, the Phase II risk assessment specifically states there is no significant contamination by hydrocarbons on the site. I consider this must add significant weight to the officers’ own observations from their respective visits.
43. So, taking this together, I do not consider there is any significant fault in the Council’s handling of the environmental health aspect of the investigation.
44. Mrs C also complains the Council wrongly told her to contact PHE to pursue her complaint. The Council has explained its advice was for her to obtain support with her health issues, not as part of her complaint.
45. I accept this was a misunderstanding, and I do not consider it a significant point. But, and while I would not generally criticise the Council for trying to be helpful, I do find this an odd piece of advice. PHE is a government agency, which is responsible for the national co-ordination of health services and research. It does not provide medical advice or support to individuals, which is the role of the NHS.
46. Separately, I am also critical of the Council’s handling of Mrs C’s complaint.
47. In her complaint to the Ombudsman, Mrs C says she did not receive a response to her stage 1 complaint. However, the Council has provided a copy of its response, dated 30 October, and I note Mrs C acknowledged this response in her stage 2 complaint. So I am unsure why Mrs C now says she did not receive a response to her stage 1 complaint.
48. However, I note the stage 2 complaint says it cannot explain the outcome of the planning enforcement investigation. This appears to be because the response was prepared by an officer in the Council’s Neighbourhoods & Public Protection department.
49. The Council says a planning officer discussed this aspect of the matter with Mrs C by phone on 27 February, during which it was explained the Council would take no enforcement action.
50. While this is positive if so, it is difficult to understand why the Council did not simply provide a co-ordinated complaint response, explaining its view on both aspects of the matter. Providing a formal stage 2 complaint response which answers only one aspect of the complaint, and advising the complainant to contact a Council department to get an answer to the other aspect, is confusing and unnecessary.

Summary

51. The Council’s handling of this matter has been muddled. Although I am satisfied it undertook a planning enforcement investigation in good time, it missed a key consideration. Had there been no fault, it appears likely the Council would have taken action to address the developer’s failure to submit the Phase II risk assessment at the appropriate time.
52. However, I am also not persuaded this represents any injustice to Mrs C. The Phase II assessment provides strong evidence there was no contamination from hydrocarbons, and so, even if the Council had acted sooner, it is difficult to perceive what difference this could have made in real terms.
53. I am satisfied the Council took appropriate steps to investigate the matter from an environmental health point of view. As I have said, the risk assessment adds significant weight to the officers’ conclusions they could detect no evidence of a nuisance at the site. I find no fault here.
54. I also consider it fault the Council failed to provide a co-ordinated response to Mrs C’s complaint. However, it appears the Council did explain its position on both aspects of the matter anyway, and so I do not consider this has caused her an injustice.

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Final decision

55. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman